A Sigh of Relief for the Defence Bar: Westerhof v. Gee

March 27, 2015

On March 26, 2015, the Court of Appeal for Ontario released the much-awaited decision of  Westerhof v. The Estate of William Gee and Kingsway General Insurance (2015 ONCA 206). After reading the decision there was a collective sign of relief – at least around the offices of Templeman.

The Divisional Court in Westerhof had taken a hard line with respect to the ability of witnesses to give opinion evidence at trial. The effect of the Divisional Court decision was to force counsel to comply with Rule 53.03 of the Rules of Civil Procedure for any witness that was expected to give opinion evidence at trial. Opinion evidence could include the diagnosis of a treating physician or MRI report of a radiologist.

The expense and impracticality of ‘retaining’ non-expert witnesses so that they could fill out Form 53 and therefore be in compliance with the Rules was not appreciated by the Divisional Court.

The significance of the Court of Appeal decision is evident from the large number of interveners that were involved: Ontario Trial Lawyers Association, The Holland Access to Justice in Medical Malpractice Group, Canadian Defence Lawyers Association and The Advocates’ Society.

In its much-anticipated decision, the Court of Appeal concluded “the Divisional Court erred in concluding that rule 53.03 applies to participant experts and non-party experts who offer opinion evidence.”

Notably, the Court of Appeal – at paragraphs 76 and 81 – cited the 2011 decision of McNeill v. Filthaut (2011 ONSC 2165) with approval.  ;McNeill was argued in 2011 in response to the aftermath of Beasley v. Barrand  (2010 ONSC 2095). Specifically, our office brought a motion for a declaration that accident benefit assessors did not have to comply with Rule 53.03 prior to giving evidence in the tort trial. Justice MacLeod-Beliveau’s decision in McNeill departed with the previous case law on the issue (Beasley) and held that Rule 53.03 applied only to experts retained within the context of the litigation.

Following McNeill, there were a variety of decisions that conflicted with one another on this issue. This culminated in the Divisional Court decision in Westerhof wherein Justice MacLeod-Beliveau’s approach was specifically rejected.

The Court of Appeal has resolved the uncertainty that existed concerning how the Rules apply to witnesses called to give opinion evidence at trial. The decision addresses the practical concerns raised by the bar about the increased expense and trial time and will increase confidence that the necessary information gets into evidence.


Michael D. Swindley